possible, and that its friends should set themselves promptly to the work of improvement. Let me say here that by the term "weak schools" I do not mean only those of small attendance. The public in general will always judge of the strength of a school by the numbers in attendance, large schools being regarded as strong and small ones as weak. On the whole this is true; but for our present purposethe elevation of the present standard of instruction, and with it the character of the legal profession-there are many exceptions. Any law school, the governing body of which is determined to make it profitable, must be classed among weak ones now, and probably for a long time to come. On the other hand, a small school may be strong if its conductors have the means and the will to maintain a high standard of requirements without reference to the receipts from tuition. By weak schools, therefore, I mean those that cannot or will not make the quality of their instruction the first object, whether their classes are large or small. No doubt the two standards will ultimately coincide much more closely than they do now. True merit will be the most successful in the long run, here as elsewhere. But here as elsewhere this survival of the fittest will be a gradual and a slow process. The best means of expediting it, as I have said already, is to begin the work of criticism and improvement at the earliest possible moment. No competent judge, I think, will doubt that this moment has arrived, and that our law schools may be very much improved. For in all our schools, even those which I have called distinctly strong ones, there are now very palpable defects. To some of them large schools are peculiarly liable. They may be summed up, I think, in the very familiar antithesis: they do not educate, they only instruct. They aim only to heap up in the student's mind a great mass of legal "points"-rules, defini 1 BLACKST.-6. tions, etc.- but they do not fashion these into a system, nor even do they give him the faculty of constructing for himself such a system. The mutual influences of different rules, the construction of legal relations and institutions, the processes by which the law is constantly developing and assuming new phases, are neglected or rather positively ignored. He is supplied with an abundance of crude material, but not taught to use it. In office study, the daily participation in actual business gives the student at least some empiric training. He learns to use his acquisitions as an apprentice learns to use the tools of his trade, not by any rules, not by a systematic explanation of their powers and the principles on which they act, but by constant handling-"by rule of thumb" as the saying is. The process is a rude and imperfect one, very uncertain in its results, and exceedingly wasteful of time and labor; but for two or three centuries it has been the way in which English and American lawyers have been instituted, and it will not, perhaps cannot, be abandoned without something better is offered in its place. Our law schools, as usually conducted, offer nothing. Most of them do not in their plan of study seem even to recognize the need. It is fortunate for them, and for their pupils alike, that the training thus omitted may be supplied in the early years of practice, at least to a very considerable extent. (Even in Germany, where the course of study for the bar is very much more comprehensive than with us, and where every student is expected to master an amount of ancient as well as modern law, far exceeding the highest demands of our most thorough law schools, voices are now heard protesting against the waste of time in studying obsolete systems of practice, either as introductory to the recent codes of practice, or as a means of juridical discipline. See a very able article of H. Seuffert, in Brinz u. Pozl's Kritische Zeitschrift, etc., Bd. 17, 485-506 [1875], re viewing Renaud's Lehrbuch des gemeinen deutschen Civil Processrechts. It is worth noticing, too, that Seuffert would not do away with the study of obsolete practice altogether, but would relegate the subject to its proper place in the history instead of the dogmatics of the law. See particularly pages 497, 498, 500-505.) The effect of our present system is, that upon certain branches or rather twigs of law, the beginning student is required to commit to memory, and is supposed to understand rules of great complexity, the exact force and meaning of which few experienced lawyers would undertake to state; while upon other branches he is left entirely ignorant for want of time, it being evidently impossible within two years, or even three, to go over the whole field of law in the minute way that the teaching upon a part of it supposes. But this is not the worst of it. This minute teaching might be worth the time it takes if it showed the student how to carry out his studies on some one topic with the utmost thoroughness. But this is just what it does not do. The text-books from which it is taken aim only to present the latest decisions in all the courts. Most of these naturally are on points that may be decided one way by one court, another way by another; and what is in the text-book will be due to the mere accident of the last reported case. (9) He should consider his course as a general map of the law, page 35. This brief but admirable sketch of the elements of preparatory education for the bar, and the methods of that education, is as appropriate to-day as when it was written. No doubt it marks out a longer and more thorough course than most law students will ever give before entering upon practice. Even the select and wealthy body of students to whom Blackstone spoke did not enter upon it with zeal and perseverance suffi cient to insure success. But it was the experience of that age, as it is of our own, that no advantage is gained in education by haste or by the omission of any topic which is really useful in full practice. If the lawyer meets with success enough to require a full and complete knowledge of his profession, he will be obliged at some time to recur to these subjects, and make up in mature life imperfectly, and yet with great toil, the omissions of his earlier course. There is no subject mentioned by Blackstone that a successful lawyer need not know, and will not regret it if he does not know. It is worth notice, too, how fully in this projected course Blackstone has anticipated almost every topic to which the attention of scientific jurists and writers has since been led. Even the doctrines of the historical school of jurists, as presented by Sir Henry Maine and others, were anticipated by him in 1758 more clearly than any English jurist has stated them since. In the passage (on page 35) beginning with, “These originals should be traced to their foundations," Blackstone has enumerated with remarkable fullness every source of our law which has been investigated by later students; "the customs of the Britons and Germans " are included by Dr. Stubbs in his admirable little compend of Select Documents. The "Codes of the northern nations" included the Leges Barbarorum, which have recently had their full share of attention, if not in some cases, and especially that of the Salic law, more than that share. Blackstone no doubt included with these a group of laws closely related, Danish, Swedish, Let me say here once for all that by English jurists I mean any on either side of the Atlantic who write in the English language and study the common law of England. It would be a needless waste of words to repeat "English and American" where a single word will suffice. Indeed one could hardly be safe against criticism of that kind, except by such an awkward list of geographical terms as "English and American (both in the United States and Canada) and Australian," for there is hardly an autonomous colony of our race in any part of the world that has not already made some contributions of value to the study of English law. Norwegian, and Icelandic, which he set us the example of employing in the illustration of English law, though it has been little followed since, except by a few foreign students of that law, such as Jacob Grimm, Konrad Maurer, and Michelsen. The "laws of our own Saxon Princes 99 are now accessible among the publications of the Rolls' series, Ancient Laws and Institutes of England, edited by Benjamin Thorpe, London, 2 vols., 8vo., 1840. Of the Roman and feudal laws it is needless to say more here. English lawyers have just passed through one of their periodical fits of indiscriminate admiration for the former, and are beginning to study the facts of its historical connection with our own. That is to say, they are beginning to take Blackstone's advice, given a hundred and thirty years ago, as to both of these systems, that "their history should be deduced, their changes and revolutions observed, and it should be shown how far they are connected with, or have at any time been affected by the civil transactions of the kingdom." (p. 36.) |